SUDHAKAR AGARWAL vs SEPSET PROPERTIES PVT.LTD.

*HARERA *fll eunuennr,ir Complaint No.3572 of 2079/3079 of 2020 BEFORE THE HARYANA REAI ESTATE REGUTATORY AUTHORITY, GURUGMM Complaint no.

3572 of 2019 /3079 of 2020 Order reserved on 22.03.2023 Order pronounced on: 24.O5.2023 Sudhakar Agarwal, R/o: - B-85, Avas Vikas Colony, Delhi Road, District- Saharanpur, Uttar Pradesh.

Complainant Versus M/s Sepset Properties Private Limited.

Regd.

Office at: - 11th Floor, Paras Twin Towers, Tower-B, Sec-54, Golf Course Road, Gurugram, Haryana.

Also At: - Room no.

205, Welcome Plaza, S-551 School, Block-ll, Shakkarpur, Delhi-110092- Respondent CORAM: Shri Ashok Sangwan Member APPEARANCE: Ms.

R.

Gayatri Mansa (Advocate) Complainant Shri Akshay Sharma (Advocate) Respondent ORDER 1.

The present complaint dated 28.08.2019 has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Developmentl Act,2016 (in short, the Act) read with rule 2g ofthe Haryana Real Estate (Regulation and Development) Rules, ZO|T (in short, rhe RulesJ for violation of section 11(4)(a) of the Act wherein ir I4.-- Page 1of 1d ffiHARERA ffi eunuenmr is inter olia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed lnter se.

Unit and proiect related details A.

2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: Page 2 of 15 Complaint No.

3572 of 2079 /3079 ot 2020 s.N.

Particulars Details 1.

Name of the proiect 'Paras Dews', sector- 106, Gurugram 2.

Nature of proiect Residential group housing project 3.

RERA registered/not registered Registered 118 of 2 017 dated 28.oa.2o17 4.

DTPC License no.

67 of 2072 dated 73.06.20t2 Validity status 1,2.06. us 1,2.06.2020 Name of licensee Sepset Properties Licensed area 1-3.7 6 Acre 5.

Unit no.

Apartment no.

04, 10tt floor, Tower D [as per BBA on page 28 of complaint] 6.

Unit measuring 227 5 sq. ft. [as per BBA on page 28 of complaintl 7.

Date of execution of Apartment buyer's agreement 30.L2.20L4 (page 2l of complaintl 8.

Possession clause 3.

Possesslon 3,1 Subiect to Clause 10 herein or any other circumstances not anticipated and beyond the reasonable control of the Seller and any restraints restrictions from any courts/ authorities and subiect to the Purchaser(sl haying complied with all the terms and conditions of this Agreement and not being in default 14!er any of the provisions of thisk HARERA ffiGURUGRANI B.

Facts ofthe complaint: 3.

The complainant made the following submissions: - Complaint No.

3572 of 20L9 /3079 of 2OZO Agreement and having complied with all provisions. formalities, documentation, etc. as prescribed by the Seller, whether under this Agreement or otherwise, from time to time, the Seller proposes to hand over the possession of the Apartment to the Purchaser(s) within a perlod of 42 (Forry Two) months with an additional grace period of 6 (six) Months from the date of execution of this Agreement or date of obtaining all licenses or approvals for commencement of construction, whichever is later, subiect to Force Maieure.

9.

Due date of possession 30.12.207A (calculated from the execution of BBA) (grace period is allowed being unq ualifiedl 10.

Total sale consideration Rs.7,36,42,37 5 / - [As per SOA on page no.

30 of renlv) 11.

Total amount paid by the complainant Rs.1.,50,63,461/ - [as per applicant ledger on page 59 of complaint) 72.

Occupation certificate dated 15.01.2 019 13, Offer of possession 24.07.2019 (as per page 60 of complaint) 14.

Withdrawal letter 25.07.2079 (as per Annexure 4-6 on page 64 of complaintJ Page 3 of 15\r HARERA ffiGURUGRANI I.

RUGRANI I.

That the project named "PAMS DEWS'was being developed by respondent on a parcel of land admeasuring 13.762 acres situated at Sector 106, at Village- Daultabad, Tehsil & District Gurgaon.

II.

That on relying upon the facts and assurances of timely competition of project by the respondent's representatives, the complainant booked a flat bearing no.

T-D/1004 on 10rh floor, admeasuring super area of 2275 sq.ft. for a total sale consideration of Rs.1,,36,42,375 /- and paid a sum of Rs.1,50,63,461/- against the same.

Thereafter, buyer's agreement was executed on 30.12.2074.

IIL That as per clause 3.1 of the buyer's agreement, the project was to be completed within 42 months with 6 months ofgrace period from the execution of the said agreement.

So, the stipulated date for handing over possession of the said unit was 30j,22079 but the same was offered on 24.01.201,9.

IV.

That the complainant vide Ietter dated 22.05.201,9 raised his concern regarding non-completion of project in time, but the respondent neither replied to his objections nor take any action to comply with the same.

Hence, vide letter dated 2S.OZ.2O1g he requested the respondent to return the entire paid-up amount along with interest, but no payment has been made by it till date.

V.

That the respondent has violated several provisions of the Act of 2016.

Hence, this complaint.

Relief sought by the complainant: The complainant sought following relief(sJ: I.

To refund the entire paid-up amount of Rs. j.,50,63,461/- fRupees Complaint No.

3572 of 201-9 /3079 ot 2020 C.

4.

One Crore Fifty Lac Sixty-Three Thousand Four Hundred and Sixty- One only) along with prescribed rate of interest.

Page 4 of 15 D.

6. ffiHARERA ffi euruennHrr 5.

L lll.

It.

Complaint No.

3572 ot 2019 /3079 of 2020 ll.

To pay a sum of Rs.5,00,000/- towards the compensation for mental torture, hardship and harassment and Rs.S0,000/- towards the Iegal expenses. expenses.

On the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11(a) [a] ofthe Act to plead guilty or not to plead guilty.

Reply by the respondent/builder.

The respondent has contested the complaint by filing reply dated 15.0L.2021. on the following grounds: - That the complainant is not a genuine flat purchaser or consumer and purchased the said flat for commercial and investment purposes for which the jurisdiction of this Hon'ble Authority cannot be invoked.

The object of RERA Act is to protect the interests of the consumers and not the investors.

That the present complaint is not maintainable as the possession had to be handed over to the complainant in terms of clause 3.1 and 3.2 of the buyer's agreement.

The complainant has been himself guilty of not adhering to the payment schedule and made most of the payments after passing of the respective due dates.

The same is not permissible in terms of RERA Act, 201,6 and in view of the same, the complaint merits outright dismissal.

That the complaint is not maintainable and is premature since the project is a RERA registered one, having registration no.

119 of 2017 dated 28.08.2017.

In terms ofthe Registration Certificate, the due date of completion is 31.07.202'l which has not arrived in the present case.

Therefore, the complaint merits outright dismissal.

Page 5 of 15 HARERA MGURUGRANI Complaint No.3572 ot 20L9 /3079 of 2OZO iv.

That the complaint is infructuous and not maintainable as the construction of Tower-D has already been completed and the 0ccupation Certificate has also been received on 15.01.2019.

The offer of possession has already been issued to the complainant on 24.01.2019 with the demand for the remaining payment.

However, he not only failed to make the payment of the due amount but filed the present complaint to harass the respondent. v. ondent. v.

That due to the failure of the complainant in paying the complete consideration, the respondent suffered immense monetary hardships.

Hence, it is most humbly prayed that this Authority ensures that he shall comply with the terms of the buyer,s agreement and the provisions of RERA Act, 2016 and Haryana Real Estate (Regulations and Development) Rules, 2017. vi.

That the complaint is not maintainable as the complainant has not filed the same as per the correct form of the Haryana Real Estate (Regulation and Development) Rules, 2017. vii.

All other averments made in the complaint are denied in toto.

7.

Copies ofall the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and submission made by the parties.

E.

Jurisdiction ofthe authority The respondent raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The objection of the respondent regarding rejection of complaint on ground of jurisdiction stands reiected.

The authority observes that it has/Y Page 6 of15 HARERA ffi.

GURUGRAI\/ 9.

3572 of 2019 /3079 of 2020 8. territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialjurisdiction As per notification no.

L/92/20t7-1TCp dated 74.IZ.2O|Z issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Curugram.

In the present case, the project in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete territorial jurisdiction to deal with the present complalnt.

E.II Subiect matter iurisdiction Section 11(4)(aJ of the Act, 2016 provides thar the promoter shall be responsible to the allottees as per agreement for sale. for sale.

Section 11(4J(a) is reproduced as hereunder: Section 71.,..,(4) The promoter shall- (q) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulotions mode thereunder or to the ollottees as per the ogreement Ior sole, or to the association of ollottees, qs the cose moy be, till the conveyonce ofall the opartments, plots orbuildings, os the case moy be, to the ollottees, or the common qreas to the ossociation ofallottees or the competent authority, as the case moy be; Section 34-Functions oI the Authority: 344 of the Act provides to ensure complionce of the obligations cast upon the promoters, the olloxees and the reol estote aoents under this Act ond the rules and regulations made thereundei.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the 10. complainant at a later stage.

Page 7 of 15 *HARERA ffi eunuennvr Complaint No.3572 o'i 2019 /3079 of2020 11.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in Newtech promoters and Developers Private Limited Vs State of l!.p, and Ors, 2027" 2022(1) RCR(C), 357 and reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLp (Civil) No, 73005 of 2020 decided on 72.05.2022 and wherein it has been laid down as under: "86.

F-rom the scheme of the Act oI which a detoiled reference has been mode and tqking note of power of odjudicotion delineated with the regulotory outhority and adjudicating ofJicer, whot finally culls out is thot olthough the Act indicates the distinct expressions like 'ret'und', ,interest', 'penalq/' and 'compensation', a conjoint reading of Sections 1B ections 1B and 19 cleorly manifests that when it comes to refund of the amount, qnd interest on the refund qmount, or directing paymentof interestfor delayed detivery ofpossession, or penolty ond interest thereon, it is the regulatory quthoriry which has the power to examine ond determine the outcome ofa complaint.

At the same time, when it comes to o question of seeking the relief of adjudging compensation ond interest thereon under Sections 12, 14, 1g and 19, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 reod with Section 72 of the Act. if the adjudicotion under Sectlons 12, 14, 1g and 19 other than compensation as envisaged, if extended to the odjudicating ot'ficer as prayed that, in our view, moy intend to expqnd the ambit ond scope ofthe powers ond functions ofthe odjudicqting officer under Section 71 ond thot would be qgainst the mondate of the Act 2016." 12.

The application for refund filed in the form CAO with the adjudicating officer and on being transferred to the authority in view of the .ludgement titled as M/s Newtech Promoters and Developers pvt Ltd.

Vs State of UP & Ors. (supra), the issue before authority is whether ir should proceed further without seeking fresh application in the form CRA for cases of refund along with prescribed interest in case the allottee wish to withdraw from the project on failure of the promoter to give possession as per agreement for sale irrespective of the facf _ ,V Page B of 15 HARERA P*GURUGRAII Complaint No.3572 of 20L9 /3079 of 2020 whether application has been made in form CAO/ CRA.

It has been deliberated in the proceedings dated 10.5.2022 in CR No.

36g8 lZO2j, titled Harish Goel Versus Adani M2K projects LLp and observed that there is no material difference in the contents of the forms and the different headings whether it is filed before the adjudicating officer or the authority.

13. ority.

13.

Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the case mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount. ' F.

Findings on the obiections raised by the respondent.

F.l Obiection regarding the complainants being investor.

14.

The respondent has taken a stand that the complainant is a investor and not consumer.

Therefore, he is not entitled to the protection of the Act and to file the complaint under section 31 of the Act.

The respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of the consumers of the real estate sector.

It is settled principle of interpretation that the preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the same time, the preamble cannot be used to defeat the enacting provisions of the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if it contravenes or violates any provisions ofthe Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the apartment buyer's agreement, it is revealed that the complainanfl/\(/ Page 9 of 15 * HARERA #eunuenntrl Complaint No.3572 of 207913079 of2020 is a buyer and paid total price of Rs.1,50,63,461/- to the promoter towards purchase of an apartment in its project.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "allottee" in relotion to o reol estate project meons the person to whom a plot, aportmentor building, as the cose may be, has been allotted, sold (whether os freehold or leosehold) or otherwise transferrecl by the pr by the promoter, and includes the person who subsequently acquires the said allotment through sale, tronsJer or otherwise but does not include o person to whom such plot, apartment or building, as the cose may be, is given on renr" 15. ln view of above-mentioned definition of "allottee,, as well as all the terms and conditions of the apartment application for allotment, it is crystal clear that the complainant is an allottee as the subject unit was allotted to him by the promoter.

The concept of investor is not defined or referred in the Act.

As per the definition given under section 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor".

The Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.

00060000000105 5 7 titled as M/s Srushti Sangam Developers pvL Ltd.

Vs.

Soruapriya Leasing (P) Lts.

And Anr. has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that the allottee being an investor is not entitled to protection of this Act also stands rejected.

F.II Obiection regarding premature filing of complaint.

16.

Another contention of the respondent is that the complaint filed is premature, as the proiect is a RERA registered having registration number 118 of 2017 dated 28.09.201.7 and in terms ofthe registration certificate, the due date of completion is 31.07.2021.

However, after going through possession clause 3.1 of the buyer,s agreement asv Page 10 of 15 HARERA M.GURUGRAI\/ mentioned in the table, the due date comes out to be 30.12.201g and whereas the present complaint has been received on 28.08.2019.

Thus, the objection regarding premature filing of the complaint stands rejected.

F.

III Obiection regarding the delay in payments.

17.

The obiection raised by the respondent regarding delay in payments by the allottee is totally invalid as he has already paid an amount of Rs. unt of Rs.1,50,63,461/- against the total sale consideration of Rs.1,36,42,37 5 /- to it as evident from the applicant's ledger annexed with the complaint.

The fact cannot be ignored that there might be certain group of allottees who defaulted in making payments.

But upon perusal of documents on record, it is observed that no default has been made by him in the instant case.

Hence, the plea advanced by the respondent is rejected.

G.

Findings on the relief sought by the complainant.

19.

G.l To refund the entire amount deposited i.e., Rs.1,S O,63,461/ - by the complainant along with prescribed rate ofinteresl The complainant booked a flat bearing no.

T-D/1004 on 10rh floor, admeasuring super area of 2275 sq.ft. for a total sale consideration of Rs.7,36,42,375 /- and paid a sum of Rs.1,50,6 3,461/- agalnst the same.

Thereafter, buyer's agreement was executed on 30.12.2014, The section 18[1] is applicable only in the eventuality where the promoter fails to complete or unable to give possession of the unit in accordance with terms of agreement for sale or duly completed by the date specified therein.

The due date of possession as per buyer,s agreement as mentioned in the table above is 30.12.2018 and there is delay of 7 months, 30 days in filing of the complaint.

The allottee in this case has filed this complaint on 28.08.2019, after possession ofthe unit/t,__ l] Complaint No.

3572 of 201.9 /3079 of 2020 18.

Page 11of15 * HARERA ffi eunuenlvr Complaint No.

3572 of 2019 /3079 of 2020 was offered to him after obtaining occupation certificate by the promoter.

The OC was received on 15.01.2019 whereas the offer of possession was made on 24.01.201,9.

The complainant vide letter dated 25.07.2019 requested the respondent that he wishes to withdraw from the project and made a request for refund of the paid-up amount along with interest on its failure to give possession of the allotted unit in accordance with the terms of buyer's agreement. agreement.

But on failure of respondent to refund the same, he has filed this complaint seeking refund.

In case the allottee wishes to withdraw from the project, the promoter is liable on demand to return the amount received by the promoter with interest at the prescribed rate if promoter fails to complete or unable to give possession ofthe unit in accordance with the terms of the agreement for sale. [t was upheld by in the judgement of the Hon'ble Supreme Court of India in the cases of lVewtech promoters and Developers Private Limitcd Vs State oI ll.p. and Ors. (supra) reiterated in case oI LI/s Sana Realtors private Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 2020 decided on 72.05.2022; that: - "The unqualified right ofthe allottees to seek refund referred Under Section 18(1)(q) qnd Section 19(4) ofthe Act is not dependent on ony contingencies or stipulotions thereof. lt appeors thot the legislqture has consciously provided this rightofrefund on demand os on unconditionol obsolute rigit to the allottees, if the promoter foils to give possession of the oportment, plot or building within the time stipuloted under the terms of the agreement regordless of unforeseen events or stoy orders of the Court/Tribunol, which is in either wqy not attributable to the allottees/home buyer, the promoter is under an obligotion to refund the amount on demand with interest at the rqte prescribed by the Stqte Government including compensotion in the monner provided undertheAct with the proviso that if the ollottees does not wish to withdrow from the project, he shall be entitled for interest for the period ofdeloy till handing over possession at the rote prescribed".

Page 12 of 15\r trHARERA #- eunuennrvr Complaint No.

3572 ot 20t9 /3079 of 2020 20.

Keeping in view of the aforesaid circumstances and judgment of Newtech Promoters and Developers private Limited Vs State of ll.p. e of ll.p. and Ors, (supra) reiterated in case of M/s Sana Realtors private Limited & other Vs Union of India & others SLp (Civit) No.

73005 of 2020 it is concluded that if allottee still wants to withdraw from the project, the paid-up amount shall be refunded after deductions as prescribed under the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations, 2018, which provides as under: - "5, AMOUNT OF EARNEST MONEY Scenario prior to the Real Estote (Regulotions and Development) Ac' 2016 was diJferenL Frouds were carried out without any feor qs there wos no law for the some but now, tn view of the above fctcts ond taking into conslderation the judgements of Hon'ble National Consumer Disputes Redressal Commission qnd the Hon'ble Supreme Court of lndio, the authority is of the view thot the forfeiture omount of the earnest money shc,ll not exceed more than 10yo of the considerqtion amountofthe reql estate i,e, apqrtment /plot /building as the case moy be in all cases where the cancellotion of the flat/unit/ plot is nade by the builder in o uniloterol manner or the buyer intends to withdrow from the project qncl any agreement containlng qny clouse contrary to the aforesaid regulations sholl be void ond not btnding on the'buyer.,, 21.

Further, Clause 12.6 of the buyer's agreement also talks about the deduction of 10Yo of the basic sale price of the dwelling unit in case of withdrawal of the allotment.

Clause 12.6 of the said buyer,s agreement reiterated as under; - 12.6 "The Purchosers hos fully understood and apreed that in cqse the Purchaser(s) withdraws or surrender his ollotment, for any reoson whatsoever ot any point of time, then the Seller at its sole discretion moy cancel/ terminate the booking/ ollotment Agreement and shall forfeit the amounts poid deposited up-to the Eqrnest Money, along with other dues of non-refundoble nature.

No seporate notice shall be given in this regard.,' 22. ard.,' 22.

Thus, keeping in view the aforesaid factual and legal provisions, the respondent cannot retain the amount paid by the complainant against Page 13 of 15 ,V ffiHARERA & eunueruHrr Complaint No.

3572 of 2079 /3079 of 2020 the allotted unit and respondent/builder is directed to refund the paid- up amount of Rs.1,50,63,461/- after deducting 100/o of the basic sale consideration of Rs.1,19,43,750/- being earnest money along with an interest @10.700lo p.a. (the State Bank oflndia highest marginal cost of lending rate (MCLR) applicable as on date 12%J as prescribed under rule 15 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 on the refundable amount, from the date of surrender i.e., 25.Q7 .2079 till actual date of refund of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

G.ll To pay a sum of Rs.5,00,000/- towards the compensation for mental torture, hardship and harassment and Rs.SO,O00/- towards the legal expenses.

23.

The complainant in the aforesaid relief is seeking relief w.r.t compensation.

Hon'ble Supreme Court of India in civil appeal titled as M/s Newtech Promoters and Developers pvt.

Ltd.

V/s State of IJp & Ors, (supra), has held that an allottee is entitled to claim compensation under sections 12, 74llB and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum ofcompensation shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation.

Therefore, the complainant is advised to approach the adjudicating officer seeking the relief of compensation.

24.

The respondent vide written arguments dated 28.03.2023 placed on record a circular bearing no.

188 /20 /2022-GST, issued by the office of Principal Commissioner, GST at New Delhi prescribing manner of filing an application for refund by unregistered persons. d persons.

However, it is applicable on unregistered buyers dealing in supply of services of Page 14 of 15 ffiHARERA ffi aJRTIGRAI/ H.

25.

26.

27.

Haryana Real Estate Regulatory Authority, Gurugram Dated: 24.05.2023 Complaint No.

3572 of 2079/3079 of 2020 construction of the flats/building etc. to the builder and the same is not applicable in the present case.

Directions of the authority Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

Therespondent/builder 'l he respondent/builder is directed to refund the paid-up amount of Rs.1,50,63,4611- after deducting 10% oF the basic sale consideration of Rs.1,19,4 - being earnest money along with an interest @ L0 .7 0o/o p.a. amount, from the date of surrender i.e., 25.07 .207 ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

Complaint stands disposed of.

FiJe be consigned to the registry.

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